General Electric Company v. Acme Fast Freight, Inc.
| Citation | 324 F. Supp. 1079 |
| Decision Date | 16 March 1971 |
| Docket Number | Civ. A. No. 20476. |
| Parties | GENERAL ELECTRIC COMPANY, to its own use and to the Use of Insurance Company of North America, v. ACME FAST FREIGHT, INC. v. PERRY TRANSFER COMPANY, Inc. |
| Court | U.S. District Court — District of Maryland |
Philip O. Roach, Baltimore, Md., for plaintiff.
Randall C. Coleman, George T. Tyler and Donald C. Greenman, Baltimore, Md., for defendant and third party plaintiff.
Herbert F. Murray and Michael A. Pretl, Baltimore, Md., for third party defendant.
General Electric Company has brought this action against Acme Fast Freight, Inc. to recover the value of 86 stereo sets which were shipped from the General Electric Company facility at Decatur, Illinois, to the General Electric warehouse on Quad Avenue in Baltimore, Maryland.
Acme Fast Freight has filed a third party claim against Perry Transfer Company, Inc., third party defendant, contending that if recovery is had against Acme, Perry Transfer Company, with whom Acme had a contract in Baltimore to deliver to consignees in the Maryland area, must indemnify Acme.
The facts which gave rise to this action are not in dispute and were largely stipulated to in the pretrial order entered into by the parties.
The parties stipulated that on September 26, 1966, General Electric Company delivered 86 stereo sets to Acme Fast Freight at Decatur, Illinois, for transportation to Baltimore, with delivery to the General Electric Company at 6500 Quad Avenue; that the cargo was loaded in a trailer furnished by Acme; that the trailer was then transported by rail in what is known as a piggyback operation to Baltimore; that Perry picked up the trailer at the B & O piggyback yard for delivery to General Electric, and that at the time it was so picked up the cargo was intact, as when shipped.
It is also stipulated that the stereo sets were delivered to the General Electric warehouse in Baltimore on September 30, 1966, and were stolen sometime between that date and the early morning of October 3, 1966.
It was further stipulated that the trailer, having been picked up by Perry, arrived at General Electric's warehouse sometime after the noon hour on Friday, September 30, 1966, and that there was some discussion in reference to accepting it at that time between Stanley J. Leonard, the supervisor of General Electric in charge of the warehouse, and Perry's driver, Mr. Druen; it is also stipulated and testified to in this case that the driver of the Perry tractor, Mr. Druen, telephoned Mr. Perry and stated that he was having some trouble in effecting a delivery, and after some discussion, Mr. Leonard, the supervisor, and Mr. Rye, the receiving clerk at General Electric's Quad Avenue warehouse, agreed to have the trailer backed up to a bay and the doors were opened and the seal broken, so that unloading could take place early on the morning of October 3, 1966, by General Electric employees.
It was also stipulated that Mr. Perry called Acme in Decatur, Illinois. He was told he could "drop" the trailer off at the General Electric warehouse, but to get a receipt.
Plaintiff has clearly stated that he permitted the trailer to be left at the warehouse to be unloaded at plaintiff's convenience early Monday morning. The hickey nail and seal which held the doors of the trailer closed were broken, the pins of the door were taken off, the doors were swung back, made fast, and the trailer was placed flush against the bay and overhead doors so that access could be had to that trailer by the General Electric employees from within the warehouse Monday morning.
The following Monday morning, the trailer was found to have been stolen and, while the vehicle was subsequently recovered, the stereo sets were not.
The contention of plaintiff, General Electric, is that Acme did not furnish it, the consignee, with previous notice of the arrival of the trailer, or intention to deliver the stereo sets, and that when they arrived at the General Electric warehouse plaintiff's employees were not in a position to receive the load due to other loading and unloading commitments; and that, under the circumstances, Acme is liable for the loss as no delivery was effected.
Defendant and third party plaintiff, Acme, contends that there was a delivery to and an acceptance by General Electric because General Electric instructed Perry and agreed to the trailer being left on its premises, and one of General Electric's employees assisted the driver in breaking the seals on the door of the trailer, opening the doors, so that the cargo would be ready for unloading.
Acme also contends that if it is liable to plaintiff, then third party defendant, Perry Transfer, must indemnify Acme.
Third party defendant, Perry Transfer, contends that delivery was effected and that Acme and Perry were no longer responsible for the cargo.
Third party defendant also contends that even if Acme is liable to plaintiff, it is not liable to Acme because when its driver was advised on Friday that General Electric was not in a position to unload the stereo sets, he sought and obtained the authorization and instruction of Acme to leave the trailer at the General Electric warehouse for unloading early Monday morning. Perry further contends that Acme waived any contractual rights when it consented to Perry's leaving the trailer at General Electric's warehouse.
Certain documents have been introduced in evidence in the trial of this case, consisting of nine exhibits offered by plaintiff, Seven through Nine consisting of photographs of the General Electric warehouse in Baltimore, and the others being the bill of lading, freight classifications, and supplements to certain tariffs.
Defendant filed two exhibits: (1) the contract between Perry and defendant-third party plaintiff, Acme, and (2) a supplement to a tariff upon which they rely.
The plaintiff's principal contention is that the bill of lading governing the shipment of the stereos placed the risk of loss upon the carrier, Acme Fast Freight. Specifically, plaintiff contends that section 4(a) of the bill of lading continued the carrier's liability as such for a period of 48 hours, exclusive of Saturdays, Sundays and holidays, after notice of arrival of the property at destination had been given and after placement for delivery at destination had been made.
This contention is that it matters not whether the consignee even commences unloading and partially completes unloading and exercises even that degree of dominion over a cargo; that liability of the carrier remains until 48 hours has expired.
Plaintiff further states that this provision appears in the Tariff, which was introduced into evidence (Plaintiff's Exhibit Number Three), which states in substance: where a trailer is spotted for loading by the consignor, or for unloading by the consignee, 48 hours' free time will be in effect. General Electric urges that this court follow that provision, and cites several cases upholding such a provision.
The case on which plaintiff primarily relies under circumstances that appear to be somewhat the same, is Red River Cotton Oil Co. v. Texas & P. Ry. Co., 216 La. 519, 44 So.2d 101 (1949), cert. denied, 339 U.S. 953, 70 S.Ct. 841, 94 L. Ed. 1366 (1950).
In that case, a quantity of copra was shipped from the Philippine Islands to New Orleans by steamship and from New Orleans to Alexandria, Louisiana, on the defendant's railroad. Upon arrival in Alexandria, the railroad cars were moved by defendant's engine onto a spur track maintained for exclusive use by plaintiff under a spur track agreement. Employees of plaintiff opened the gates and at their direction the cars were pushed into the mill enclosure and spotted on the tracks at the place designated by plaintiff's employees. All of this took place on a Sunday. At about 3:30 a. m. on Monday, a fire broke out and the shipment of copra, still in the railroad cars, was destroyed. The free time for unloading, as provided for in the Bill of Lading, had not elapsed.
The court affirmed the holding of the trial court in favor of the plaintiff-consignee. The court's rationale was that the contract provided for a period of free time for unloading, and that during this time, the risk of loss was on the carrier.
The court relied primarily upon the terms of the contract and the decision of the Supreme Court in Michigan Central Railroad Co. v. Mark Owen & Co., 256 U.S. 427, 41 S.Ct. 554, 65 L.Ed. 1032 (1921). The dissenting opinion pointed out two weaknesses in the majority's reasoning: First, that the provision in the Bill of Lading providing for free time was not really applicable to the case, since it contemplates a situation where a loss occurs before delivery has been made; and second, Michigan Central, supra, is to be distinguished because there the railway cars were placed on a public siding, while in the case before the court, the cars were placed on a private siding. The dissent reasoned that in such a situation, the carrier could not have prevented the loss, since complete control had been relinquished to the consignee. This court finds the reasoning of the dissent...
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